Mourad v RailCorp [2000] NSWIRComm 199 | Case summary

Evidence 10RailCorp's tendered material consists of: a statement from Mr Michael Crimmins, the investigator; a copy of the investigation report and its attachments including statements made at various dates by Abdul Mourad, Fryan Bagatua, Dean Green, Paul Needham, Michael Power, Cherrielyn Custodia, Salah Zein, Shannon Rumble, Hamad Abu-Ahmed and Housam Habra, file notes by Mr Abu-Ahmed, the transcript of Mr Mourad's record of interview with the investigator, Ms Rumble's letter of 26 May 2010, Ms Rumble's response to allegations against her, hospital admission record for Ms Rumble, the police report and Mr Mourad's Ellipse records; PSA position description; other documents relating to the course and conduct of the disciplinary process; and copies of the Code, the Procedure and the Policy (exhibit 1). Ms Rumble and Ms Custodia gave oral evidence. 11Mr Mourad's tendered material consists of his statement dated 22 December 2010 (exhibit 2). Mr Mourad gave oral evidence. Ms Custodia's evidence 12Ms Custodia is a PSA and at the time of the incident had worked at Flemington Maintenance Centre ("FMC") for four years and usually worked the 8:30pm to 4:30am shift. She was on duty and present during the incident on 15 March 2010. 13In common with a number of other PSA's who were on duty at the time of the incident, Ms Custodia provided a hand written statement on 15 March 2010 at the request of her supervisor. She said in that statement: '... we were all bored and mucking around Salah and Abdul decided to play cricket with a stick and container 1 nearly hit Shannon and she told Abdul to stop it you dog and then I went inside ... all I heard was screaming stop it you dog ...' (exhibit 1, tab C7). 14She also made a written statement dated 18 May 2010 as part of the disciplinary investigation. She said in that statement: '... 4. ... Out the front of the shed we were playing around. Abdul grabbed a stick and Salah started to throw empty twenty litre drums to Abdul ... 5. Shannon came out of the chemical room and she was wheeling a trolley ... One of the drums that Abdul hit went past Shannon and I am not real sure if it hit her not. 6. At the time I heard Shannon say something offensive to Abdul and he said "Apologise to me". Then Abdul held the piece of wood up to Shannon as if he was going to hit her on the head. At that time I went into the chemical room, When I was in the shed I heard Abdul say "Apologise to me" and Shannon said "No" and I think she was telling him to go away. That was all I heard' (exhibit 1, tab C15). 15In examination in chief she described the incident as follows: 'Well, we got our jobs and then usually we go to the chemical room to fill up our drums. A bunch of us coworkers were, like, waiting in front of the chemical room and just mucking around and stuff, and then Abdul and Salah were bored or something and then Abdul found a stick and then Salah threw the drums at him and then he'd hit it, and he went past someone and then they hit another drum and it went past Shannon and then Shannon goes, "Stop it, you dog". And then Abdul goes, "What did you call me?" And then he goes, "Apologise to me". And then she goes, "No". And then, so she got her drums and then she was on her way to the storeroom and Abdul followed her and said, "Apologise to me". And then she goes, "No", and then I went inside the chemical room and I could just hear them arguing, yes' (T 2/2/11, page 3, lines 15-25). 16She confirmed the contents of her statements of 15 March 2010 and 18 May 2010 were true. She said she did not intervene to stop Mr Mourad as she did not know it was going to go that far and she just thought they were mucking around. She confirmed the staff were mucking around - standing around teasing each other - when Mr Mourad started to play cricket with Mr Salah Zein. She described Ms Rumble's tone of voice when she called Mr Mourad a dog as 'angry'. She described Mr Mourad's tone of voice during the incident as 'joking around like'. 17In cross examination she said she had worked with Mr Mourad for about four years and during that time had no problems with him, did not find him aggressive and would not be uncomfortable if he returned to work at the FMC. 18In relation to her statement on 15 March 2010 that Ms Rumble was 'screaming "stop it you dog"' she: agreed it was not a scream for help; agreed it was said in a loud voice; and said she did not believe Ms Rumble was scared 'because usually they muck around, so it just seemed normal'. She confirmed that she had witnessed Mr Mourad and Ms Rumble mucking around before the incident, usually in the meal rooms. 19She described the chemical room as fairly small. It contains two pumps (for soap, chemicals etc) and usually eight people need to use those pumps to fill two 20 litre containers each, so the PSAs have to wait their turn. She described the empty containers as light, except perhaps if the lid was on, and did not think it would hurt you if it hit you, except perhaps if you were hit in the head. Ms Rumble's evidence 20Ms Rumble is a PSA and at the time of the incident had worked at the FMC for about one year and usually worked the 8:30pm to 4:30am shift. 21Ms Rumble prepared and signed a statement, on 15 March 2010 at about 9:20pm, shortly after the incident. She said in that statement: '... Abdul and Salah were playing cricket with a two by four and an empty soap containers. As I walked out with the trolley of soap Abdul said while giggling along the lines of "how about we try and get Shannon". I tried to move away ... and I said "no stop". Salah threw the container and Abdul took a swing and missed me by centimetres. I got really frightened by it all and angry that he would do something like that I said to him "you're a dog" He then proceeded to come over asking "what did you say" and hit me on the head with a plank of wood, my head instantly started to throb. I was shocked I told him to "fuck off" and "you're a dog" and tried to get the trolley over the tracks ... but was having trouble. He tried to come back at me and hit me on the head again but stopped just before it got to me and said "I'll help you if you say sorry and something nice about me". I said sorry and complimented his hair I didnt want to get hurt by him again. He laughed in my face and said "As if Im gonna help you". Then he made a comment about me being a teenager. I was disgusted by the way I was being treated and told him "fuck off, you're an asshole" and finally got my trolley over the tracks and made my way out ..." (exhibit 1, tab C9). 22She also made a written statement dated 18 May 2010 as part of the disciplinary investigation. She said in that statement: '... 5. ... Salah was throwing 20 litre soap drums at Abdul so he could hit them with the piece of timber ... 6. ... I walked past them ... and Abdul yelled out "Let's get Shannon". Everyone was laughing and having fun and Salah threw a drum at Abdul and he hit it ... and it nearly hit me and it came that close it scared me. 7. I got angry at Abdul and called him a dog ...and I said "How dare you". He got offended, but he was still laughing and smiling. He said to me "What was that?". I said "You're a dog". Then he came over and said a few things I can't remember. 8. While he was saying those things he was swinging the piece of timber around and then he hit me on the top of the head with the piece of timber. I went weak in the knees I didn't fall to the ground but I stumbled a bit. I can't remember what I said to Abdul but I think I told him off again ... 9. After he hit me and I was standing there ... Abdul was giggling and saying things to the others about me being young and dumb. I remember I swore at him again and he was gesturing to me with the timber as if he was going to hit me again. After that that is when I walked away.' (exhibit 1, tab C11). 23Ms Rumble signed a letter dated 26 May 2010 asking for the investigation to be stopped 'as I believe the incident was taken out of proportion and I realise now that the incident in question was in-fact a joke between two colleagues that went wrong and that we were both at fault' (exhibit 1, tab C20). This letter, together with the contents of the police report concerning the incident of 15 March 2010, caused RailCorp to conduct a disciplinary investigation against Ms Rumble. 24As part of that investigation Ms Rumble prepared another statement dated 12 July 2010 and provided a written response to the allegations against her by way of a letter dated 31 August 2010. In her statement she said she had been approached by other staff to write to RailCorp about ending the investigation and have Mr Mourad returned to the FMC. She did not prepare the letter of 26 May 2010 herself but had discussed its contents with its author, Mr Habra, and she signed it. She stated that at no time had Mr Mourad asked her to write a letter about the incident of 15 March 2010 or to stop the investigation and when she had seen Mr Mourad outside of work the incident of 15 March 2010 had never come up. She stood by the truth of her earlier statements. 25In her letter of 31 August 2010 she explained that she asked for the investigation to be stopped as it was an unnecessary stress in her life, she wanted to leave it and forget it. She outlined the incident of 15 March 2010 in largely identical terms to her earlier statements. She also indicated that, after the flying soap container just missed her and she had first called him a dog, "... I should not have done this ...because they were obviously just fooling around. We were and still are friends and I know he meant no harm in the act, it was all in jest. Here is when the joke went wrong as from that point Mourad got defensive and approached me, timber in hand ...' (exhibit 1, tab C26). 26In examination in chief she described the incident as follows: 'Okay. Well, we had just started work and we were all on our major clean, where we go to the chemical store and fill up these big kind of 20 litre drums with soap and do our clean with that. And there was me, Cherrielyn and Dean in the chemical store and Abdul and Salah were playing games out the front with this big this large piece of wood that we usually put onto the button to hold so the soap can come out and you don't have to stand there for 20 minutes holding the button. And Salah was getting, like, the empty 20 litre plastic drugs and passing it to Abdul and he was, like, swinging at it with the big piece of wood and kind of like playing kind of like cricket kind of thing. So I finished up filling up my big soap container and I put it on the trolley and I walked outside of the chemical store and over to get to the Five Road sheds. And Abdul, he goes, "Let's go get Shannon", like, to try and get me with the big drum. So Salah throws it at him and he hits it and it misses me, like, by just a few centimetres and really scared me. So I got a bit angry. Sorry, when he said that, I said, "No, stop, don't do it", because I was stuck and I wasn't in a position to play around and fool around, so I really didn't want to be a part of it. So he did it anyway and it missed me and I got a bit scared and angry and I called him a dog. Then he walked over with the piece of wood and he comes over and he goes, "What did you say?" So then I said it again and he hit me on the head with the piece of wood and then I told him off again. Sorry. And I tried leaving, but I was having trouble getting over the rail tracks. And then he was kind of waving the stick over my head again and he asked, "Do you want any help with that, you know, I'll help you if you say something nice about me, if you say sorry". So I say sorry and I say that I like his hair, because I don't know, I was a bit scared that he was going to hit me again. And then he goes, "As if I'm going to help you". And so I mouth off to him again and I try and get my trolley back away to Five Road and the sheds.' (T 2/2/11, page 9, lines 20-46). 27She described the actual hit to her head as the piece of timber held, she was pretty sure in one hand, above her head and coming straight down and making contact with the top of her head. It was done hard enough to 'really hurt'. As a result her head and shoulders were sore for up to 3 days and she suffered from migraines. She was already 'booked off' for the three days after the 15 March in any event, and returned to work as rostered three days later. She took no sick leave and made no workers compensation claim, unaware that she could make a workers compensation claim. 28She confirmed her statements of 15 March 2010 and 18 May 2010 as correct. She still considers Mr Mourad's actions on 15 March 2010 to have been intimidating and threatening, she felt scared and was a bit angry. She said that his comment about her age was about her having no respect and being young and dumb, but that it was a 'really quick comment'. She confirmed that when the police saw her on 15 March 2010 she gave them brief details of the incident and said she did not want the police involved. She said that the police record of the incident was not accurate. After being taken to her letter of 31 August 2010 she: confirmed she still considered the matter as a joke that had gone wrong; believed she had made it clear at the time of the incident that she did not want to be part of the joke; and said she was not at fault for being hit on the head but was at fault for swearing at Mr Mourad. 29In cross examination she agreed that she said in her letter of 31 August 2010 that the others had been joking around, they were still friends and it was all in jest, but said that was a reference to when they were playing cricket, not the hit on the head. She said in relation to Mr Mourad: she had known him for a few months before the incident; they sometimes played cards together; their interactions were only at work; they joked around in the meal room 'not so much'; she would have a problem if he returned to the FMC, as he was scary - in the way he talks and presents himself - and he teased her a lot; she had asked him not to tease her; his teasing was kind of jovial; he is mostly of a happy demeanour; and she had never seen him be aggressive towards their fellow workers. 30She saw Mr Mourad after the incident, but only to say hello; she does not recall if he apologised to her; they have not spoken about the incident; she recalled meeting Mr Mourad once, about a month after the incident, in the car park at work. She could not recall at first having a telephone conversation with him or being at a lunch with him. After further details were put to her, she recalled that Mr Mourad had called her and she had attended a lunch with others at which Mr Mourad was present, after the incident. 31She rejected the propositions that Mr Mourad was joking when he tapped her on the head or that someone else might see it as a joke, because she did not think hitting someone on the head with a large piece of wood was joking in any way. She said that she has been stressed by all of this, she just wants to forget it and has been trying to do so. 32In re-examination she said that hitting someone on the head was not a joke because 'people don't do that' and she believes she made it clear to Mr Mourad that she was not up for a joke at the 'let's get Shannon' point of the incident. She could not recall the details of any conversation that she had with Mr Mourad after the incident when he called her or at the lunch. He may have apologised to her but she could not recall as she has tried to 'flash everything out of my brain, I don't want to be part of this anymore' (T 2/2/11, page 22, lines 15-16). Mr Mourad's evidence 33Mr Mourad joined RailCorp as a PSA on 19 May 2003. Mr Mourad progressed to the position of Customer Service Attendant Grade 1 ("CSA") on 6 December 2004 but was regressed due to disciplinary action to the position of PSA from 9 September 2005. He was working as a PSA at FMC at the time of the incident. 34Mr Mourad provided a hand written statement on 15 March 2010 at the request of his supervisor. His statement reads: 'During a convo in the chemical room Shannon called me a dog in a jokey manner I told her to apologise she called me dog again so whilst still in the jokey situation I lightly tapped her with a stick on her head.' (exhibit 1, tab C2). 35Mr Mourad attended an interview on 6 July 2010 as part of the disciplinary investigation. During the interview he described the incident as: 'Q34 ... A. Okay it was a while ago. I'll do my best from memory. I can't really remember what day it was but we were getting chemicals to do our duties. There were a few of us in the chemical room. As for a verbal altercation, it was more of a muck around conversation, although there was a lot of what you would call dirty language being thrown around. It was harmless because that's the way we spoke to each other. She used colourful language, I used colourful language and the rest of us used colourful language. There was a piece of timber in the chemical storeroom we used to hold down the knob that releases a chemical. I did use that piece of timber. It wasn't really struck her on the head; it was more of a light tap on the head, a very light tap. It wasn't - wasn't out of aggression, it wasn't out of anger, it was more a stupid act at the time; again, no intention behind it. I've spoken to Miss Rumble. She understood or she also knew it was a muck-around thing but again, an act of stupidity is what it was at the end, no aggression, no anger, nothing, no bad intentions towards Miss Rumble, not before, not during and not after.' (exhibit 1 tab C19). 36During the interview he said when the incident started they had been mucking around and using colourful language. He had difficulty recalling details and conceded that a number of things may have occurred but he did not recall them. He did not recall throwing soap drums but conceded he could have been hitting drums with the stick. He denied yelling 'Let's get Shannon'. He recalled Ms Rumble calling him a dog; did not recall if he tapped her on the head after the first or second time she did so; and recalled, after been shown his hand written note from 15 March 2010, asking Ms Rumble to apologise. He denied being offended by the 'dog' remarks. He agreed swinging a piece of wood was dangerous and added it was stupid, but not done with aggression or anger or bad intent. He agreed that mucking around was common. When asked about Ms Rumble's reaction to being hit, he said she was surprised and upset and he thinks she swore, he said he was upset but immediately made a joke. At the conclusion of the interview Mr Mourad said he was very sorry for what happened, it wont happen again and he regretted breaching RailCorp's policies including the Code. 37After receiving Mr Armstrong's letter of 29 September 2010 informing him that the disciplinary outcome being considered was dismissal, Mr Mourad wrote to Mr Armstrong on 6 October 2010. In the letter he said [sic]: '... I want you to know that what happened between ms rumble and I was not out of aggression or anger nor was there ever an intend to hurt ms rumble rather it was an act of stupidity of the highest degree. It was something I immediately regretted and completely out of character ...what took place between us was skylarking and mucking around. Again, even in mucking around what I done should never have happened. ... I have breached some very important railcorp policies I know that but I never would do something like this on purpose it was a lapse of judgment ... I am truly sorry for what I've done ... and my sincere apologies for the in continence I have caused.' (exhibit 1, tab F). 38He prepared a statement dated 22 December 2010 and described the incident as: '... 2/ About 9 pm I went to the chemical room to get my supplies for the major clean I had to do. There was a group of cleaners in the area and we began to muck around. I believe Salah Zein and I began to pretend to play cricket with him throwing empty soap drums (which are very light) towards me and I was hitting them with a piece of timber. 3/ I recall Shannon Rumble leaving the chemical room with a trolley of soap drums and I believe that one of the empty drums that I had hit with the stick almost hit her. Shannon called me a dog and something else. I was still joking around and I said to her something like "what did you say"? Shannon repeated "you've a dog. I do not recall what else was said. But I know there was swearing. I do remember asking Shannon to apologise but I was joking and mucking around when I asked. I then tapped her on the head with the piece of timber. 4/ The piece of timber was about 1.5 metres long and about 1.5 cm by 6 cm thick. I had no intention to harm or cause discomfort to Shannon when I tapped her on the head with the piece of timber. Shannon said something else to me but I cannot remember what she said. After this I do recall offering to help Shannon with the trolley but I was only joking around and when she said yes I made some silly remark like "help yourself".' (exhibit 2). 39In his statement he also said he was very upset when he heard Ms Rumble was waiting to go to hospital; the next day he asked a work colleague to call her to make sure she was okay; and afterwards he called Ms Rumble to apologise. He acknowledged that his actions on 15 March 2010 were not in the best interests of RailCorp or his fellow employees. He had not intended to harm or upset anyone when he was joking around. He denies entering into a verbal altercation with Ms Rumble but agrees there was an exchange between them that he considered jovial. He agrees he did hit Ms Rumble on the head but he says he only intended to tap her on the head and not to cause her any harm. 40In examination in chief he confirmed his statement of 22 December 2010 as correct. He also described the incident as follows: 'Okay. We start work at Flemington I think at 8.30. We got a job soon after. I was allocated to do major cleans with a handful of others. We went made our way to the chemical storeroom to get our chemicals for the night. A number of workers have beaten me into the storeroom, so I've got to wait into the chemical room, rather, so I had to wait. I picked up a stick that we used to wedge a nob. Salah was also there. He started throwing empty drums, I started hitting them with a stick. One went past Shannon. She called me one or two words, a dog or whatever it was, then we started mucking around verbally, during which I did strike here on the head. It was a very light tap on top of the head. And she went off to her work, I got my chemicals and went off to my work.' (T 2/2/11, page 28, lines 5-15). 41He gave evidence that: when he heard Ms Rumble required medical attention he was upset, he never thought that would happen; it was a very light tap on the top of her head with the piece of wood; he did it through stupidity, there was no good reason for it; they were mucking around the entire time, in his opinion; and he has never done anything like it before, no criminal record, never been in a fight, never thrown a punch. He said 'I'm not a violent person, as you can ask anyone, I'm a clown, I love to joke around, I like to have fun' (T 2/2/11, page 29, lines 5-6). He agreed there was a verbal altercation between him and Ms Rumble, but that was just how the staff at FMC 'muck around with each other'. 42He contacted Ms Rumble two days after the incident by phone, after first getting another employee to call the day before, and he asked her how she was and apologised to her. He said after the call he saw her at a lunch / late breakfast and once or twice in the car park at FMC, but not at work because he was moved to Bankstown during the investigation. He said they never spoke about the incident because of the investigation. He reiterated that they had not been fighting; there was no feud between them; they were always mucking around; he did not hit Ms Rumble because she called him a dog; it was stupidity, not aggression, not anger, not spite; and there was no intent behind what he did. He said it will not happen again and he will do his work and not say a word. He said he is not qualified to do anything else and has only had limited, occasional labouring work since he was dismissed. 43In cross examination he accepted that he had attended briefings on the Code on 4 April 2006 and 17 February 2010, although he could not recall the specifics. He accepted he had attended briefings on the older Code of Workplace Standards on 19 May 2003 and 7 December 2004. And agreed he had received training on the Policy on 24 July 2009. He agreed he had been regressed from a CSA to a PSA, as well as being counselled by the HR Manager, in 2005 for unsatisfactory behaviour including offensive language to an external service provider. He agreed he had also received a two day suspension, as well as being counselled by the HR Manager, again in 2005 in relation to the entry of an unauthorised person, although he disputed his responsibility on that occasion. He described himself as 'one of the best' as a PSA and said he had worked at 13 locations under different supervisors and PSA staff without any problems. He rejected the proposition that his disciplinary record suggests he has a pattern of behaviour in breaching the Code that becomes progressively worse. 44He agreed that he did not apologise to Ms Rumble when the empty soap container narrowly missed her. When asked if he thought at the time if that was an acceptable safety risk to be taking, he said he was not thinking, he was mucking around. He agreed that Ms Rumble said 'stop it' but maintained that he thought she was joking around because she was smiling, showing her teeth. He denies saying 'Let's get Shannon', but said someone else may have said it. He maintains he was mucking around throughout the incident. He agreed the stick was long, but said it was not heavy and he was able to determine the force of the tap because he was a 'big boy'. 45He agreed that the entire incident of mucking around, as he described it, was completely unacceptable in the workplace. When it was put to him that when Ms Rumble told him to stop, called him a dog and told him to go away, he said that had he 'genuinely known that she was serious and didn't want to muck around, I would straight away, immediately stopped' (T 2/2/11, page 39, lines 8-9). When challenged that Ms Rumble had been swearing, he maintained that was the nature of their mucking around. He agreed if he knew she was serious and not mucking around he would not have tapped her on the head. He also agreed that tapping someone on the head was not appropriate even of they had asked to be hit on the head. He said that if Ms Rumbe would be uncomfortable working with him at the FMC, if he was reinstated, it would be inappropriate for him to return there. 46He agreed he called Ms Rumble a 'stupid teenager' after he had hit her, but maintained it was how they spoke, teased, each other at FMC. He accepted that he was 'totally at fault' for what happened to Ms Rumble and no fault lay with her. He 'simply did not know it was a one way street, I thought she was mucking around the same way I was mucking around' (T 2/2/11, page 40, lines 2-3). 47In re-examination he agreed that, whether Ms Rumble had been was mucking around with him, his actions were wrong, he said he was very stupid. He agreed that as a RailCorp employee he should not enter into any type of skylarking and said he cannot, with hindsight, believe it happened in the first place. 48He said that he is on the Safety Committee and at one time was the Chairman of the Committee at FMC. He understands how important safety is at RailCorp, he has a fair idea about safety and that is why he knows what he did was stupid. Other material concerning events on 15 March 2010 49Mr Hamad Abu-Ahmed was the supervisor of the PSA staff during the incident. A number of documents prepared by Mr Abu-Ahmed are in the attachments to the investigation report - a Level 5 Investigation Report (exhibit 1, tab C1), file note dated 15 March 2010 (exhibit 1, tab C10) and a statement dated 18 May 2010 (exhibit 1, tab C12). Mr Abu-Ahmed did not witness the incident but was initially approached by Ms Rumble when she requested she be allowed to go home and asked him to speak to Mr Mourad. Mr Abu-Ahmed had Ms Rumble contact the injury hotline and work care medical to check on her, as well as asking her to prepare a statement / file note. He asked the other staff on duty to prepare hand written notes of the incident and completed the necessary RailCorp paperwork. 50There are handwritten notes from Mr Bagatua (exhibit 1, tab C3), Mr Green (exhibit 1, tab C4), Mr Needham (exhibit 1, tab C5), Mr Power (exhibit 1, tab C6) and Mr Zein (exhibit 1, tab C8) from 15 or 16 March 2010. In summary: Mr Bagatua states he heard Mr Mourad ask Ms Rumble to apologise, she did and called him a dog, Mr Mourad pretended to hit her; Mr Green confirms there was mucking around; Mr Needham saw nothing; Mr Power says he heard Ms Rumble swearing ('screaming') and says Mr Mourad never touched her; and Mr Zein states they were mucking around and Ms Rumble swore and called Mr Mourad a dog. 51During the investigation statements were obtained from Mr Green on 18 May 2010 (exhibit 1, tab C13), Mr Power on 18 May 2010 (exhibit 1, tab C14) and Mr Zein on 28 July 2010 (exhibit 1, tab C24). In summary: Mr Green confirms there was joking and mucking around; Mr Power says everyone was joking and having a laugh when Ms Rumble came out with a trolley and started saying random profanities, Mr Mourad spoke to her and she swore again, and he was behind Mr Mourad and did not see the hit; and Mr Zein confirms they were hitting empty drums with a stick, he heard Mr Mourad and Ms Rumble use colourful language outside the chemical room and came out in time to see Ms Rumble leaving. 52The Discharge Summary from Westmead Hospital for Ms Rumble records that she presented 'after an alleged assault with a wooden plank stiking (sic) on her head once, otherwise well. Pt C/O mild scalp tenderness and neck pain radiating to right shoulder. ... XRAY showed no evidence of fracture. Pt was advised to take simple analgesics for pain and discharged ...' (exhibit 1, tab C16). 53The police report indicates that Ms Rumble and Mr Mourad were both swinging planks of wood at each other in the eating area when contact was made with the top of Ms Rumble's head, she felt pain, she was sat in a chair by a co-worker and shortly after conveyed to hospital. It notes Ms Rumble did not want any action taken against Mr Mourad. Other material 54Copies of the Code, the Policy and the Procedure are in exhibit 1. The Code has provisions dealing with 'Acceptable behaviour and responsibilities', 'Safety' and 'A discrimination, harassment and bullying free workplace'. The Policy deals specifically with violence in the workplace and makes it abundantly clear that violence is not to be tolerated at RailCorp. The Procedure deals specifically with bullying and harassment, and defines harassment (at clause 6) as including 'any form of behaviour that ... a person does not want; offends, humiliates or intimidates ... ; and targets a person because of their sex, ... age ... The fact that harassment is not intended doesn't mean that it's not unlawful or that its not a breach of the Code ...'. 55Mr Mourad's Ellipse Report - his electronic employment record - provides details his job history, training and a summary of his disciplinary record. 56The investigation report also includes a number of statements and other documents related to the investigation carried out by RailCorp against Ms Rumble. The allegations appear to relate to her letter requesting the investigation cease and the possibility she lied to the police (based on the contents of the police report). That material has been discussed above where it covers the events on 15 March 2010 or subsequent contacts between Ms Rumble and Mr Mourad. Findings 57This is an appeal to the Board under clause 43 of the Transport Administration (Staff) Regulation 2005 ("Regulation") against the decision of RailCorp to impose the punishment of dismissal on Mr Mourad. Section 23(1) of the TAB Act provides that the Board may decide to allow or disallow the appeal or make such other decision as it thinks fit. 58Mr Mourad disputes the severity of the punishment. He admits the misconduct on 15 March 2010 in so far as it relates to his striking Ms Rumble with a piece of wood, but denies there was a verbal altercation. 59The Board's function in this matter is, in effect, to determine whether the disciplinary punishment imposed by RailCorp in relation to the misconduct finding is appropriate in all the circumstances - see Duhbihur v Transport Appeal Board and Anor [2005] NSWSC 811 at [116]-[125]. In addition to Mr Mourad admitting to only part of the misconduct allegation, there is conflicting evidence before the Board on a number of points. The Board is obliged to determine any issues before it on the civil standard of proof, that is, the balance of probabilities. The Board is also obliged to approach the matter in a manner consistent with the principles in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336. 60At the outset, the Board should indicate that it found all three witnesses who gave evidence to be generally witnesses of truth. Any inconsistencies, contradictions or changes in their evidence are largely attributable to the different perspectives witnesses may have from each other of the same event, problems of recall and memory over time, tendency to reconstruct events etc. Ms Custodia's evidence the Board accepts without reservation. In weighing Ms Rumble's evidence the Board has borne two particular factors in mind. First, her evidence is perhaps coloured to an extent by her strongly held view that hitting someone could never be seen as a joke. Secondly, as Ms Rumble herself admitted, she has actively been trying to forget the events of 15 March 2010 and what followed. In weighing Mr Mourad's evidence, it is clear that even from July 2010, when he was interviewed during the investigation, he has had some difficulty in recalling specific details of conversations, the sequence of events etc. 61The Board generally accepts Ms Rumble's evidence as to how events unfolded on 15 March 2010 from when she first left the chemical room pushing the trolley to when she exited the immediate vicinity of outside the chemical room and proceeded towards her work area (and then on to the office to ask to go home). Her report from 15 March 2010 was the most detailed of the versions recorded that day, albeit she prepared it while in some pain and subject to possible stress (due to residual fear and anger). Similarly her statement to the investigator of what occurred during the incident is the most comprehensive. She has readily admitted to her own 'at fault' actions such as swearing at Mr Mourad and calling him a dog. Additionally, the other material available tends to corroborate various parts of Ms Rumble's sequence of events. For example, Mr Power's evidence in his statement that Ms Rumble was swearing, Mr Mourad spoke to her and she swore again; Mr Bagatua's evidence in his hand written statement that Mr Mourad asked her to apologise and that she did and called him a dog and then Mr Mourad 'pretended' to hit her; and Ms Custodia's evidence that Mr Mourad followed Ms Rumble to ask her to apologise. 62However, because of several differences or conflicts on some points, it is appropriate to also identify those points on which the Board prefers Ms Rumble's evidence or prefers the evidence of Mr Mourad. 63The Board prefers Ms Rumble's evidence that Mr Mourad said words to the effect of 'let's get Shannon' as she exited the chemical room and shortly afterwards hit an empty container towards her. Ms Rumble has been consistent on this point since her report of 15 March 2010. It is also consistent with her crying out 'stop it', which Ms Custodia also heard and which Mr Mourad agreed she said in his oral evidence. Mr Mourad said he did not yell it during this interview, but as noted, his general recall of the events of 15 March 2010 was already limited in July 2010. Mr Mourad again denied doing so in his evidence before the Board, while now conceding someone else may have said it. As such, the Board believes he is reconstructing rather than recalling the event. 64The Board prefers Mr Mourad's evidence that he did not advance on her holding the stick with one hand while hitting it into the other hand and he held the stick with two hands when he tapped it on Ms Rumble's head. Ms Rumble first mentioned these points in her oral evidence. There is no reference to whether his grip was one or two handed in her written statements and she described him as swinging the stick when he approached her - not hitting it into his other hand. And certainly a two handed swing and grip would be consistent with the description by the various witnesses of the throwing and hitting of the empty drums as 'cricket'. Ms Rumble is mistaken on this point and is reconstructing rather than recalling the event. 65The Board accepts Ms Rumble's evidence that she believed she made it clear to Mr Mourad that she did not want to participate in the mucking around with her initial cry of 'stop it', then her swearing, her calling Mr Mourad a dog and then her repeating the swearing and calling him a dog after she was hit on the head. Ms Custodia's evidence confirms that Ms Rumble's tone was loud and angry and Mr Power in his hand written statement said she was 'screaming'. The Board also accepts her evidence, consistently maintained, that she felt intimidated by Mr Mourad's actions and was fearful and angry. 66The Board also accepts that Mr Mourad believed it was all part of, or the continuation of, the 'mucking around'. Ms Rumble in some of her statements refers to Mr Mourad as becoming defensive or being offended after she called him a dog. However, his belief is consistent with: the various witnesses' evidence that the mucking around started outside the chemical room while staff were waiting for their turn; Ms Custodia's evidence that Mr Mourad's tone was 'joking around like' and she did not intervene because she thought they were mucking around; Ms Rumble's evidence that he was laughing and smiling as he approached her; his request that Ms Rumble both apologise and say something nice if she wanted his help with her trolley; her reply that he had nice hair; his response to the effect that 'why should I help you' and his comment about her being a dumb teenager; and Ms Rumble's statement that he was 'giggling' while telling the others that she was young and dumb. The Board also notes: Mr Mourad's evidence as to mucking around being common place at the FMC; his description of himself as a 'clown'; and Ms Rumble's evidence that Mr Mourad often teased her. 67In short, Ms Rumble and Mr Mourad had two genuinely held but opposed views of their interactions on 15 March 2010. Ms Rumble did not want to take part in the joking around outside the chemical room, tried to convey this to Mr Mourad and was ultimately scared of and angry with Mr Mourad for hitting her and his subsequent actions and comments. Mr Mourad was mucking around with Ms Rumble, pushing a supposed joke to, what he readily admitted afterwards, very stupid lengths and ultimately behaved inappropriately towards Ms Rumble due to his skylarking. 68The evidence before the Board also supports the findings that Mr Mourad intended to tap Ms Rumble on the head and did so; he did so as part of a joke taken too far; he did not have any malicious intent or intend to harm her; and Mr Rumble actually suffered harm from the tap to her head by way of pain to her head and shoulders, plus migraines, for about 3 days. 69The Board also accepts Mr Mourad's evidence that he enquired after Ms Rumble's condition and offered his apologies to Ms Rumble in the days immediately after the incident. Although Ms Rumble could not recall the contents of any of their conversations she did eventually recall a phone call from Mr Mourad and their being at a group lunch. 70In addition to apologising to Ms Rumble, he has apologised and expressed his regret to RailCorp on a number of occasions. The Board accepts that his apologies and contrition are genuine. The views he expressed in his oral evidence that he would not want to return to the FMC if it would make Ms Rumble uncomfortable and that he would refrain from mucking around in the future are consistent with his expressions of remorse over the incident. 71Mr Mourad's evidence about whether there was a verbal altercation was somewhat confused. In his statement of 22 December 2010 he denied there was a verbal altercation but in his oral evidence he agreed that a verbal altercation occurred. However, in both cases it is clear that Mr Mourad was suggesting that although he did use colourful language and may have commented about Ms Rumble's age, it was, once again, part of the general mucking around. 72In any event, it is the Board's view that by swearing himself and interacting with Ms Rumble and her swearing / calling him a dog by, among other things, asking her to say something nice about him while apologising and making a negative comment about her age, it amounts to being involved in a verbal altercation in a general sense. 73There was no dispute that his misconduct occurred on 15 March 2010 or, more importantly, that he did hit Ms Rumble on the head with a piece of wood. 74Therefore, on the facts as found by the Board, it is clear that Mr Mourad has behaved inappropriately and breached the Code, as alleged and particularised by RailCorp. As such, the misconduct is proven. 75Mr Morad's inappropriate behaviour was essentially skylarking at work that resulted in injury to a fellow employee. Although the Board has accepted that he acted without malice or intent to harm, his tapping Ms Rumble on the head was a violent act in itself. 76Violence, in any form, at work is a serious matter. 77RailCorp drew the Board's attention to the decisions in Graham v South Eastern Sydney and Illawarra Area Health Service [2010] NSWIRComm 1023 and Charwaki v RailCorp 2008] NSWTAB 33. The former involved fighting at work and the latter violent action by one employee against another (a one-sided fight). There is no doubt that fighting or violence at work may warrant the dismissal of the employee or employees involved. A further example is the decision in Kumar v Valuca Pty Ltd [2001] NSWIRComm 63 where Sams DP, at paragraphs [27] - [34], reviews some cases and discusses the relevant principles in unfair dismissal matters when dealing with fighting at work. 78Similarly there have been a number of decisions dealing with incidences of skylarking at work. See for example Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (obo Harrison and Anor) and Australian Co-operative Foods Ltd [2000] NSWIRComm 199 where Sams DP, at paragraphs [60] - [64,] reviews some cases and discusses the relevant principles in unfair dismissal matters when dealing with skylarking at work. Skylarking is also a serious matter that may warrant the dismissal of the employee or employees involved. 79Ulitmately the tribunal dealing with the matter must carefully consider all the relevant circumstances - including the risk of injury, whether actual injury occurred, whether there was a deliberate intention to harm or injure, was the conduct harassing etc - to determine if dismissal is justified in what is inherently a serious matter. 80Mr Mourad's actions on 15 March 2010 were seriously flawed. He was unable to recognise when a fellow employee was clearly signalling she did not want to be part of the mucking around he was involving her in - 'stop it' should simply be taken to mean stop it. He then acted in a manner that clearly had the potential to be harmful or, whether intended or not, cause injury - tapping someone on the head with a 1.5 metre piece of wood. And it did in fact cause harm to Ms Rumble. It was a thoughtless, grossly stupid, insensitive and highly inappropriate thing to do. 81Mr Mourad has been trained on two occasions on the Code and once on the Policy. He should have known that violence or actions with the potential to inflict harm have no place at RailCorp or any workplace. The Board must also consider Mr Mourad's existing disciplinary record. He has two other disciplinary breaches recorded against him. Although those breaches are not of the same nature as this matter, he cannot hold himself out as having an unblemished employment record. 82There are some counter balancing factors to consider in relation to Mr Mourad's otherwise highly inappropriate behaviour on 15 March 2010. First, Mr Mourad's action, though stupid and thoughtless, was not malicious or intended or calculated to do harm. 83Secondly, Mr Mourad's actions and conduct after the incident deserve favourable consideration. He has never denied hitting Ms Rumble on the head. He enquired after her well being. He apologised to her. He admitted to RailCorp that his behaviour was wrong, stupid and in breach of important policies. He has apolgised to RailCorp for his actions on 15 March 2010. He has expressed his remorse and undertaken not to repeat his behaviour. And, after hearing Ms Rumble's evidence, he has expressed a desire not to return to the FMC, if reinstated, as it would make her uncomfortable. 84After much deliberation, the Board has concluded that in all the circumstances it would not be appropriate to dismiss Mr Mourad from his employment as a PSA doing cleaning work at RailCorp. 85However, the misconduct remains of such overall seriousness that a significant punishment must be imposed. Clause 37 of the Regulation sets out a number of available punishments increasing in severity from a caution / warning to dismissal. 86It was argued on behalf on Mr Mourad that a final warning and some training would be an appropriate outcome. The Board rejects that argument. Such an outcome might be appropriate if the injury to Ms Rumble had been caused by accident when she moved near the skylarking cricket game. That is not the case here. It was not an unfortunate accident. Mr Mourad did not intend any harm to Ms Rumble but he did intend and chose to tap Ms Rumble on the head. And he must face the consequences of that highly inappropriate behaviour. 87In all the circumstances the Board considers that it is appropriate to suspend Mr Mourad without pay for a period of 150 days. This outcome confirms the seriousness of the misconduct without necessitating the most severe punishment of dismissal. It is also appropriate to give Mr Mourad a final warning to ensure he realises his career at RailCorp will not survive any further misconduct on his part. 88Therefore RailCorp's decision to dismiss Mr Mourad as at 26 October 2010 will be set aside, effective from that same date, and Mr Mourad will instead be suspended without pay for the period from 27 October 2010 to 25 March 2011 inclusive, a period of 150 days. In ordering Mr Mourad reinstated as a PSA, the Board specifically declines to order his reinstatement to the FMC or any other location. Given Ms Rumble's ongoing employment at RailCorp, her discomfort at the thought of working with Mr Mourad again and Mr Mourad own stated desire not to cause her discomfort, it is a matter best determined by RailCorp at its own discretion. Order(s) 89In relation to the appeal (TAB10/1609) the Board makes the following orders: (1) The appeal is allowed; (2) The decision of RailCorp to dismiss Mr Mourad is set aside and he is reinstated to the position of Presentation Services Attendant with a date of effect of 26 October 2010; (3) Mr Mourad is suspended without pay for the period of 150 days from 27 October 2010 to 25 March 2011 inclusive; and (4) A final warning is to be placed on Mr Mourad's employment record. M Oakman Acting Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 March 2011

Mourad v RailCorp

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